United States of America U.S.A. 6

Federal Supreme Court Johnson v. Transportation Agency, Santa Clara County, California

in International Labour Law Reports Online
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United States of America U.S.A. 6

Federal Supreme Court Johnson v. Transportation Agency, Santa Clara County, California

in International Labour Law Reports Online

References

* © Copyright, West Publishing Co., 1987, all rights reserved.

* Some footnotes are omitted; those included are not renumbered. — Ed. 1 section 703(a) of the Act, 78 Stat. 255, as amended, 86 Stat. 109, 42 U.S.C. § 2000e-2(a), provides that it 'shall be an unlawful employment practice for an employer— '(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or '(2) to limit, segregate, or classify his employees or aplicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.'

2 No constitutional issue was either raised or addressed in the litigation below. See 748 F.2d 1308, 1310, n. 1 (1984). We therefore decide in this case only the issue of the prohibitory scope of Title VII. Of course, where the issue is properly raised, public employers must justify the adoption and implementation of a voluntary affirmative action plan under the Equal Protection Clause. See Wygant v. Jackson Board of Education, ... 106 S.Ct. 1842... (1986).

10. The difference between the 'manifest imbalance' and 'prima facie' standards is illuminated by Weber. Had the Court in that case been concerned with past discrimination by the employer, it would have focused on discrimination in hiring skilled, not unskilled, workers, since only the scarcity of the former in Kaiser's work force would have made it vulnerable to a Title VII suit. In order to make out a prima facie case on such a claim, a plaintiff would be required to compare the percentage of black skilled workers in the Kaiser work force with the percentage of black skilled craft workers in the area labor market. Weber obviously did not make such a comparison. Instead, it focused on the disparity between the percentage of black skilled craft workers in Kaiser's ranks and the percentage of blacks in the area labor force.... Such an approach reflected a recognition that the proportion of black craft workers in the local labor force was likely as miniscule as the proportion in Kaiser's work force. The Court realized that the lack of imbalance between these figures would mean that employers in precisely those industries in which discrimina- tion has been most effective would be precluded from adopting training programs to increase the percentage of qualified minorities. Thus, in cases such as Weber, where the employment decision at issue involves the selection of unskilled persons for a training program, the 'manifest imbalance' standard permits comparison with the general labor force. By contrast, the 'prima facie' standard would require comparison with the percentage of minorities or women qualified for the job for which the trainees are being trained, a standard that would have invalidated the plan in Weber itself.

11 In some cases, of course, the manifest imbalance may be sufficiently egregious to establish a prima facie case. However, as long as there is a manifest imbalance, an employer may adopt a plan even where the disparity is not so striking, without being required to introduce the non-statistical evidence of past discrimination that would be demanded by the 'prima facie' standard.... Of course, when there is sufficient evidence to meet the more stringent 'prima facie' standard, be it statistical, non-statistical, or a combination of the two, the employer is free to adopt an affirmative action plan.

14. In addition, the Agency was mindful of the importance of finally hiring a woman in a job category that had formerly been all-male. The Director testified that, while the promo- tion of Joyce 'made a small dent, for sure, in the numbers,' nonetheless 'philosophically it made a larger impact in that it probably has encouraged other females and minorities to look at the possibility of so-called 'non-traditional' jobs as areas where they and the agency both have samples of a success story.' ...

1 'Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.' Griggs v. Duke Power Co., 401 U.S. 424, 431 ... (1971). 2 'Similarly the EEOC, whose interpretations are entitled to great deference, [401 U.S.,) at 433—434 ... has consistently interpreted Title VII to proscribe racial discrimination in private employment against whites on the same terms as racial discrimination against nonwhites, holding that to proceed otherwise would 'constitute a derogation of the Commis- sion's Congressional mandate to eliminate all practices which operate to disadvantage the employment opportunities of any group protected by Title Vll, including Caucasians: EEOC Decision No.74-31, 7 FEP Cases 1326, 1328, CCH EEOC Decisions H6404, p. 4084 (1973).' 'This conclusion is in accord with uncontradicted legislative history to the effect that Title VII was intended to 'cover white men and white women and all Americans,' 110 Cong. Rec. 2578 (1964) (remarks of Rep. Celler), and create an 'obligation not to discriminate against whites,' id., at 7218 (memorandum of Sen. Clark).... We therefore hold today that Title VII prohibits racial discrimination against the white petitioners in this case upon the same standards as would be applicable were they Negroes and Jackson white.' McDonald v. Santa Fe Trail Tranportation Co....

1 This renders utterly incomprehensible the majority's assertion that 'the Agency acknowledged that [its long-term goal] could not by itself necessarily justify taking into account the sex of applicants for positions in all job categories.'...

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